California's C.A.R.E. Act provides relief to those caught in a 'paper prison'

After an uphill battle that began in September of 2017, my client finally knew that her false arrest from 17 years ago would no longer stand in the way of her dream job of being a veterans hospital nurse. Judge Charles Crompton of San Francisco Superior Court stated on Jan. 3 that we were “at the cutting edge of justice.”

Indeed, my client was the first person in California to obtain this relief under California’s C.A.R.E. Act. There was nothing more rewarding than hearing those words, met by her relieved, tearful glances.

The Consumer Arrest Record Equity Act went into effect Jan. 1. Before then, my client was one of millions of people across the United States who had little to no remedy from being discriminated against by employers, housing authorities, dating partners, and a vast number of other barriers to opportunities due to arrests that lingered in their backgrounds, despite those charges never having been proven against them. Often they were never charged in the first place. This is what the sponsor of the bill, San Francisco District Attorney George Gascón, aptly described as “a paper prison.”

At 19, my client was arrested following a warrantless search of her home, as police believed marijuana and cocaine were being sold from the home she shared with her two brothers. Although the police report did not include any information about how the search pertained to her, she was arrested on four felony counts. All charges against her were subsequently dismissed.

But though her attorney at the time told her she would experience no consequences as a result of that arrest, that was not the case. Seventeen years later, after a background check, she was told she would be ineligible to pursue a career as a veterans nurse because of this drug-related arrest. For months we tried to obtain a petition of factual innocence, but the fallibility in that law creates an unduly high burden that is almost never met, particularly if the two-year filing requirement has lapsed.

Many federal and state efforts have been focused on post-conviction relief, such as expungements. However, millions of Americans fall through the cracks. According to Gascón, studies show 40 percent of men and 20 percent of women were arrested before the age of 23, yet 47 percent were never convicted. They face ancillary consequences, such as mounting debt due to being bailed out of custody and the loss of housing and job opportunities. Although employers are generally prohibited from using arrests that did not result in conviction, these laws are routinely and widely violated.

Finally, we have an opportunity to stop the dissemination of this damaging information. The C.A.R.E. Act includes an important provision that penalizes those who violate the publication prohibition by codifying a civil assessment fine between $500 and $2,500 per violation.

The potential for relief under the C.A.R.E. Act to communities of color and undocumented people cannot be understated. Studies conducted by the Equal Employment Opportunity Commission (among others) have shown these practices disproportionately affect black and Hispanic workers. Additionally, studies show that citizens with unsealed arrest records are relegated to lower-wage jobs, access to fewer educational opportunities, and likely a life in poverty.

The concept that the “war on drugs” and mass incarceration are detrimental to society has surpassed academia and injected itself into the lexicon of American and international discourse. California has demonstrated the bedrock constitutional principle that states are laboratories of democracy with its enactment of progressive new legislation such as “Ban the Box” law (prohibiting questions about criminal records on job applications) and the C.A.R.E. Act. These corrective reforms, although long overdue, are quintessential to our moral duties to remediate the policies that for decades have exacerbated cycles of destitution.

My hope is that California and other states continue to enact laws that empower disenfranchised communities and individuals through employment and educational opportunities, and by strengthening America’s legal and democratic principles of fundamental fairness, life, liberty and justice for all.

Valery Nechay is a San Francisco-based criminal defense and civil rights attorney.

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